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Read the Constitution:
It's Removal or Nothing

T he impeachment trial of William Jefferson Clinton is producing grotesque versions of constitutional law at a record pace.

Some Republicans, understandably frustrated, indeed enraged, by the Democrats' countenancing of perjury and obstruction of justice, appear to be considering the idea of one vote convicting the president and a second refusing to remove him from office but imposing some lesser penalty. A variant would have the Senate vote on "findings of fact," which imply the president's guilt but carry no sanctions. The effect in either case would be moral disapproval of crimes but without any real consequences. Frustration and rage are poor guides to constitutional interpretation, however, and these notions are preposterous readings of the Constitution as well as utterly impractical.

As do many fanciful theories of the Constitution, these come from legal academics: Prof. Joseph Isenbergh, a tax expert at the University of Chicago, first developed the idea, and Prof. Douglas Kmiec of Pepperdine University endorsed it in an article on the opposite page Friday. Their difficulty is that Article II, Section 4, of the Constitution provides that "The President [and other civil officers] shall be removed from Office on Impeachment for, and Conviction of, . . high Crimes and Misdemeanors." Not much ambiguity there; the president shall be removed. The professors' Clintonesque evasion of the plain meaning depends on what the definition of "shall" shall be.

Messrs. Isenbergh and Kmiec turn to Article I, Section 3: "Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States." The words "no further" are said to imply that removal and disqualification are the outer limits of the remedy so that lesser penalties were contemplated as being available. (Prof. Kmiec rather hilariously suggests that Mr. Clinton be required to perform "community service reaffirming the rule of law.") The natural reading of the words, however, is that the Senate may not attach additional penalties; removal and disqualification are all the Senate may decree.

The Isenbergh-Kmiec reading necessarily produces a conflict between the two articles. But no conflict exists within the Constitution if the Article I language is read, as it should be, to say simply that removal and disqualification are all that the Senate may inflict. The Isenbergh-Kmiec thesis gratuitously charges the Framers with sloppy draftsmanship.

If there were anything to the Isenbergh-Kmiec theory, it should have been mentioned somewhere in the history of the founding. But one looks in vain in the Federalist Papers, Farrand's Records of the Convention, the ratifying debates, or anywhere else for support for their unique hypothesis.

To the contrary, those who spoke to the issue clearly assumed that conviction on impeachment meant automatic removal from office: Alexander Hamilton spoke of conviction as "import[ing] nothing more than dismission from a present, and disqualification for a future, office;" Madison, who spoke frequently on the subject, always coupled conviction with removal from office; James Monroe said "the punishment [for conviction on impeachment] is only removal from, and incapacity to hold offices"; James Iredell: "it is wisely provided that [the Senator's] sentences shall extend only to removal from office and incapacitation" and "The punishment annexed to conviction on impeachment, can only be removal from office, and disqualification"; George Mason spoke of "displacing an unfit magistrate."

Justice Story, in his Commentaries on the Constitution, argued that if conviction could carry penalties other than removal and disqualification, then either acquittal or conviction would act as a bar to trial in the regular courts while limiting the results of conviction enabled the Constitution to say that that posed no bar to subsequent criminal proceedings; moreover, the limitation of the remedy prevented an inflamed Senate from ordering such punishment as it saw fit and thus working manifest injustice; These and similar remarks have been dismissed as "snippets," but it is telling that there is not a single "snippet" on the other side.

The sole historical example of two votes in the Senate was the 1804 conviction and removal from office of district judge John Pickering. The separate vote on conviction may have been due to the widespread doubt that drunkenness and insanity were "high crimes and misdemeanors." What is significant, however, is that no alternative remedies (such as suspension pending cure) were urged, and there have never been separate votes on conviction and removal since.

One is entitled to be suspicious of a constitutional interpretation that nobody thought of for over 200 years. Conservatives regularly criticize the Supreme Court for discovering wholly unexpected meaning in ancient language. We must, I suppose, put up with liberal judicial interpretations driven by nothing but the elite Zeitgeist, but that is no reason for the rest of us to play similar games when it seems in our momentary interest.

This new reading of the impeachment clauses would, in any event, produce thoroughly pernicious results. One effect would be to say that the president of the United States is convicted as a felon by the Senate but is nevertheless worthy to be president. That would have a devastating effect upon the public's perception of both the presidency and justice as well as set a terrible precedent for the acceptable behavior of future presidents. The judgment itself would compound the disgrace that this president's conduct has already visited upon our highest office.

That course would also create an unconstitutional political weapon in the permanent struggle between the legislative and executive branches. Had the Isenbergh-Kmiec proposition been accepted during Iran-Contra, is there any doubt that the Democratic House and Senate would have impeached Ronald Reagan and, unable to convict him by a two-thirds vote, adopted findings of fact by a majority vote that effectively condemned him as the perpetrator of high crimes and misdemeanors? This is precisely what the separation of powers does not allow and what anyone who thinks ahead should disavow. Sometimes conventional wisdom is conventional because it is wise. As Justice Story put it, "A constitution of government is addressed to the common sense of the people; and never was designed for trials of logical skill, or visionary speculation."

This will mean that Mr. Clinton will not be convicted, will claim complete vindication, and probably host a victory party (without, one hopes, bongo drums and a cigar) in the White House. That will be hard to endure but the pain will be preferable to yet another radical deformation of the Constitution.